Anti-BDS legislation faces crucial hearing tomorrow in California Judiciary Committee

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It’s crunch time in California as the ongoing legislative assaults against BDS, introduced in multiple states including bills in Congress, intensifies. The latest incarnation in California’s anti-BDS attack is AB 2844 “California Combating the Boycott, Divestment, and Sanctions of Israel Act of 2016,” introduced by Assembly member Richard Bloom of the California Legislative Jewish Caucus.

AB 2844 barely passed the California State Assembly Accountability and Administrative Review Committee last week and is set for a hearing by the house’s Judiciary Committee  tomorrow, Tuesday, April 19.

AB 2844 follows 2 pending efforts, AB 1551 and AB 1552 the “California Israel Commerce Protection Act,” introduced simultaneously by Assembly member Travis Allen, a right-wing Christian Fundamentalist who recently traveled to Israel to meet with Israeli legislators in an effort to garnered support for the bills, which he claims are “Due to Discrimination and Bigotry“.

The intention of all 3 bills is to legislate penalizing businesses and entities participating in boycotts against Israel. If passed the state and all state affiliated institutions would be prohibited from engaging in contracts with businesses boycotting Israel as well as imposing huge fines/penalties on those businesses if found to be violating the provisions of the pending legislation, essentially blacklisting all businesses supporting BDS from state and state municipality contracts. This is unconstitutional because political speech is protected by the 1st amendment and, according to the Supreme Court, so are politically motivated boycotts (note the “demands for equality and racial justice”).

Hence, the necessity of pro Israel anti-boycotters to claim those seeking justice and equality in Palestine/Israel by way of non violent protest (BDS) are “discriminating” against Israel due to “anti-Jewish” bigotry — and completely disregarding and ignoring the gross human and civil rights violations that decades of occupation entail and the literally billions of dollars in profits corporations rack up oppressing Palestinians and empowering the occupation — which is the reason socially conscious citizens choose to boycott Israel in the first place!

The coalition to stop AB 1551 & AB 1552 [and subsequently AB 2844], representing dozens of civil rights organizations, asserts:

AB 2844: New number, still unconstitutional:

[T]he Supreme Court has unequivocally ruled that boycotts in pursuit of humanitarian and social justice goals are a form of political speech entitled to the highest protection under the First Amendment. The court has further held that government at any level must not deny economic benefits, including public contracts, in retaliation for political beliefs. 

Here’s the background on this Supreme Court decision. Sixteen years after Black citizens of Claiborne County, Mississippi voted to boycott white merchants in the area because white elected officials refused their demands for racial equality and racial integration in 1966, resulting in the longest economic boycott in the history of the United States known as the “Port Gibson Boycott”, the Supreme Court settled NAACP v. Claiborne Hardware in 1982:

“although States have broad power to regulate economic activities, they could not prohibit peaceful political activity such as that found in the boycott that was the subject of the case… nonviolent elements of the petitioners’ activities were protected by the First Amendment to the Constitution of the United States and holding that the petitioners were not liable in damages for the consequences of their nonviolent, protected activity.

The Center for Constitutional Rights (CCR), the National Lawyers Guild (NLG), and Palestine Legal submitted a Memorandum of Law (which should be read in full) in February to California Assembly lawmakers in opposition to the pending legislation and thus far, neither AB 1551 or AB 1552 have been assigned to committee. Local activists told me the bills had been “dumped”. However, Bloom’s AB 2844, California Combating the Boycott, Divestment, and Sanctions of Israel Act of 2016, which is “virtually identical to the draft amended AB 1522 in its operative elements“, is in full swing having already passed one committee (by only a 1 vote margin), which makes the looming hearing before the state’s Judiciary committee this Tuesday particularly crucial. Local Marin activist Esther Riley, working with the Coalition to stop AB 2844, told me “We are now desperately trying to get the Judiciary Committee to vote against AB 2844 when they meet on Tuesday, April 19. We’re trying to get people in their districts to call members of the committee.”

From the opposition Memorandum:

An unconstitutional state boycott to punish boycotts of conscience

….[B]oycotts imposed by AB 1551 and AB 1552 [and the amended AB2844] do not seek to bring about political or social justice – they aim to punish those of its citizens who do engage in boycott activity as an act of conscience, and thereby to silence them.

Conclusion

The state should not be used to shield a foreign country from political criticism by penalizing the decisions of private citizens and corporations regarding what companies they will do business with and how they will invest their money in a manner consistent with their values. This would be a grave overreach of governmental power and an unprecedented assault on the free speech rights of Californians and those who do business with the state of California…….

Retired Attorney Carol Sanders, JVP-Berkeley,  who has been working closely with attorneys from Palestine Legal and the National Lawyers Guild on opposing these bills and is one of the primary co-authors of the Memorandum, told Mondoweiss: “When California enacted legislation to divest from companies that did business with apartheid South Africa, the objective was to penalize those who were complicit with that state’s human rights abuses and violations of international law. With AB 2844, California is considering legislation to do the exact opposite — to penalize companies who decide not to be complicit with state human rights abuses and violations of international law, and who disengage from doing business there.”

National Lawyers Guild Attorney David L. Mandel, JVP-Sacramento, and primary co-author with Sanders of the opposition Memorandum, mentioned to me how ironic it was that Veolia could easily get snagged up in this fight because they have dozens of huge contracts spread out all over the state (Oakland’s transit system comes to mind). Because Veolia sold off all their assets in Israel last year (representing a huge victory for the Palestinian led BDS movement who had long targeted the French corporate giant), Mandel said “if Veolia is a boycotter they would have to cancel the contracts “.  And California blogger and activist Marcy Winograd asserted this would create a “tsunami” for Veolia contracts in California. Strange bedfellows indeed if Veolia ended up on the wrong side of California’s anti-BDS AB 2844.

Mandel, who’s extended an exorbitant effort opposing this legislation, said it’s a costly time-consuming process. Maintaining and facilitating this blacklist of businesses would create untold stress and resources on municipalities throughout the state.

Rumor has it, supporters of this bill are figuring that out and lawmakers are scurrying to amend the bill yet again before Tuesday’s hearing — possibly limiting the breadth and scope of the legislation to state institutions and not county, city or small municipalities who simply don’t have the funds to carry out these investigations and/or dumping long held contracts.

Mandel told me, “It’s a horrible waste of everybody’s time, the educational work we need to do — it’s become a big contention, meetings and negotiations — the state has all sorts of priorities; economy, welfare, employment, housing and health care to improve lives of Californians — eaten into by the time that’s wasted by stuff like this.” If the bill passes the Judiciary committee it would proceed on says Mandel, “unless amendments remove the state financial obligation it would create, it will need to go to Appropriations, and that would probably take a while.”

In the letter Sanders personally sent to the committee she asks:

Why are our legislators repeatedly diverted from the pressing needs of our state, and asked instead to advance the interests of another country, and to silence the growing segment of their constituencies critical of that country’s policies? Every major human rights organization in the world has documented and condemned Israel’s violations of international humanitarian law and its grave human rights abuses against the Palestinian people in the territory it has occupied militarily for almost half a century…..

That’s a good question. Why are they? In March of 2014, Gov. Jerry Brown signed a Memorandum of Understanding with Prime Minister Netanyahu trumped as a “historic agreement” between California and Israel to “strengthen economic and research ties”.  It was sponsored by the California Legislative Jewish Caucus. Sanders mentioned to me that as a Jew she finds the California Legislative Jewish Caucus “very troubling” because it suggests being Jewish is supporting Israel. “It sets parameters for what it means to be a Jew and one thing it means is you must support Israeli policies.  When the Jewish Caucus was first established a member said it was ‘a caucus to further concerns of the Jewish community and of course express our support and love for Israel.'”

This goes far beyond expressing support. Once our governor signed the pact with Netanyahu, does that mean that I, as a Californian, am obligated to support Israel too? And if I don’t I am working against the best interest of my state? Where will it end?

More from Sanders letter to lawmakers:

AB 2844 represents one in a barrage of bills and resolutions that assail our legislators, and seek to ensure political cover and, more recently, economic favoritism for Israel.  A few years ago, battles were waged over HR 35, which directly conflated criticism of Israel with anti-Semitism.  Next came SCR 35, which rightly condemned racism on campus, but vastly overstated isolated incidents of anti-Semitism and invoked a definition of anti-Semitism that, again, conflates criticism of Israel with hatred of the Jewish people. 

Since then pro-Israel efforts have aggressively focused on legislation protecting Israel’s economy, and further advancing Israel as California’s premier trading partner.  This is so even though California and Israel already have one of the largest two-way trade relationships in the U.S, amounting to $4.2 billion in 2014, and even though Israel has one of the strongest economies in the world, and already receives more in U.S. taxpayer dollars than any other country in the world. ……

It’s time for our representatives to say “enough is enough” and to refocus their attention on providing the legislation and funding needed to improve California’s economy and standard of living for our most vulnerable populations. Leave the political debate about Israel to be waged in the public forum, unfettered by government repression or favoritism.

Perhaps the California Legislative Jewish Caucus have confused our state capitol with the Knesset:

"Capitol Knesset" Senator Marty Block Photo: California Legislative Jewish Caucus
Capitol Knesset” Senator Marty Block Photo: California Legislative Jewish Caucus

Thanks to Esther Riley

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It really is telling that they are tryng to amend the legislation so as to not threaten the Veolia contracts. I mean, come on, California! Isn’t Veolia just the kind of company you want to make an example of? Or is that not on the table when it costs YOU… Read more »

Oh, my God, I just looked at that picture, the “Capitol Knesset”!?

Beyond all the gross Constitutional affronts, these types of legislative efforts will have the opposite of their intended effect. They will likely serve to dry up new investment in Israel. No business that isn’t currently doing business in Israel will enter that tiny tiny tiny market when they risk losing… Read more »

“Literally Knesset means gathering or assembly. So don’t be so flabbergasted.”

So why didn’t they just call it the Capitol Assembly? Obviously they want to imply they are representing Knesset interests in California. Isn’t that what a diplomatic corps is for? But thanks for playing.

Thanks for this excellent report. It’s understandable, however, that Israel and its collaborators in America would not care about American standards of justice or free speech. It’s understandable that Israel and its collaborators in America would continue their policies and actions of sabotaging America’s ideals in order to drag the… Read more »